What happens to drug-sniffing dogs when marijuana is legalized in Canada?

Editor’s note: this report originally stated that the Ontario Provincial Police had no plans to retrain drug-sniffing dogs, based on information that the OPP provided to Global News. The OPP has since stated that this information was incorrect and that it is retraining the dogs.

Police drug dogs are generally trained to sniff out a host of contraband that includes marijuana. These four-legged officers can’t tell their handlers what drug they smelled — just that they found something, typically indicated by sitting down.

Legalized marijuana will put searches based on the findings of drug-detecting dogs in precarious territory, according to two legal experts, who say court challenges are not only likely but inevitable.

“If you’re in a car or you’re walking along the street and a police sniffer dog indicates that marijuana is in your vehicle or on your person, there’s no reasonable or probable grounds to believe a criminal offence has been committed, so it gives (police) nothing,” said Toronto-based criminal lawyer Paul Lewin, who specializes in laws and regulations surrounding marijuana.

When the drug is legalized on July 1, 2018, it won’t be without restrictions. But the mere presence of marijuana is no longer cause to suspect wrongdoing unless there are other criteria leading a police officer to believe someone is in non-compliance with the Cannabis Act, which a drug-detecting dog wouldn’t know.

“It’s just like the presence of apples or the presence of a computer, or shoes or tobacco,” Lewin said. “These are all legal items. Maybe they were used illegally in some way that we could dream up in which their presence is significant in a very specialized circumstance, but, by and large, just detecting that there’s cannabis on board is as relevant as determining there’s apples on board.”

Lewin said courts may give police officers “wiggle room” in early cases after the laws go into effect, but he expects canine searches, where marijuana is present, to be ruled out in time.

“I think they perhaps just haven’t thought it through,” he said of police. “That’s all I can offer because it’s an absolute game changer. Smell means nothing now.”

Noa Mendelsohn Aviv, the acting executive director of the Canadian Civil Liberties Association, said police and government don’t need to wait for this issue to be fleshed out in constitutional challenges in the courts.

“It’s up to the government to establish restriction in law, if they choose. It will be up to police not to conduct searches in a particular way or to train their dogs in particular ways, so I think there are some ways of pre-empting it,” she said. “If somebody is in possession of marijuana and marijuana is not an illegal substance, then there’s no reason to search for it, so absolutely we would expect a change.”

With searches based on the scent of pot being in legal limbo, Mendelsohn Aviv said it’s even more important for police to establish policies that keep within the parameters of constitutional searches.

“It’s hard to answer in the abstract and it’s hard to answer without knowing what the practice of officers will be,” she said. “In order for police to show that they are doing their police work in an equal and effective and fair and necessary way, then it would be in their interest, as well as in the interest of the public, that there be proactive disclosure about who they’re policing and how.”

According to the OPP, in 2016 in anticipation of the legalized cannabis legislation, the service’s Canine Program decided to no longer train or “imprint” new dogs on cannabis products. The new drug detector dogs are instead trained to find cocaine, crack cocaine, heroin, meth and ecstasy. The OPP currently deploys 16 dogs that are trained under the old system to sniff out cannabis products as well as other drugs.

Representatives of the RCMP say they will continue deploying the dogs as currently trained. The London and Toronto police services also have no plans to change their practices.

“There will still be offences related to cannabis, such as the unlawful sale or distribution of cannabis, including its sale or distribution to young persons, and the unlawful possession, production, importation and exportation of cannabis,” said Cpl. Annie Delisle, an RCMP media relations officer. “RCMP police dogs are trained to detect numerous narcotic odours. This will not change after the Cannabis Act comes into force.”

Delisle added that RCMP officers would be trained on the new “legal rights and responsibilities” for officers under the new laws.

This rationale was echoed by the London Police Service.

A Toronto Police Service spokesperson simply said that “there are no plans to make changes to the unit as a result of the upcoming legislative changes.”

Police agencies have been forced to come up with policies concerning drug-detecting dogs on their own, with no direction from the federal government.

“I don’t think you’ll see anything federally mandated in terms of whether or not people are going to continue to train on it or not train on it,” said Sgt. Jason Gunderson, a Regina police canine handler and president of the Canadian Police Canine Association. “I think what we have to keep in mind is that this is going to be an ever-evolving process with the government.”

Gunderson says the Regina Police Service is not “specifically training for marijuana” moving forward, but has no plans to retire or retrain any dogs which currently detect pot. He also added that, if needed, marijuana could be introduced as contraband to canines later on.

The lack of a national strategy on this may leave some police searches in a legal quagmire for years.

In Colorado, which legalized marijuana for recreational use in 2014, the role of drug-sniffing dogs was mired in court battles up until July of this year, when the Colorado appeals court ruled that a positive response from a drug-sniffing dog is not enough to justify a search.

The decision stemmed from a 2015 case, in which a dog alerted his handler to the presence of contraband in a truck. Because it wasn’t provable whether the dog had detected marijuana — then a legal substance — or something else, the search was tossed out.

“A dog sniff could result in an alert with respect to something for which, under Colorado law, a person has a legitimate expectation of privacy,” the panel of three judges wrote in its ruling. “Because a dog sniff of a vehicle could infringe upon a legitimate expectation of privacy solely under state law, that dog sniff should now be considered a ‘search.’”

In the months since, various police departments in Colorado have slowly adapted their training protocols to exclude marijuana from the substances their dogs are trained to respond to.

So far, Canada isn’t learning from Colorado’s example.

“Put the dogs out to pasture, do something humane, let them run in someone’s backyard,” said Lewin. “They can be someone’s pet going forward, but we certainly shouldn’t be paying for cannabis-sniffing dogs going forward.”